Court File and Parties
Ontario Court of Justice
Date: August 24, 2020
Court File No.: D30539/19
Between:
J.N.S. Applicant
— AND —
D.E.R.B. Respondent
Before: Justice Roselyn Zisman
Heard on: August 18, 2020
Reasons for Judgment released on: August 24, 2020
Counsel:
- Samantha Coomara, counsel for the applicant
- Natalia Crowe, counsel for the respondent
Ruling on Temporary Motion
Zisman, J.:
Introduction
[1] This motion is with respect to parenting arrangements for the child E.W.R.B. ("child") born May 2, 2017 and whether a move out of the jurisdiction should be permitted.
[2] At the present time the child is in the primary care of the Applicant, who is his step grandmother, and the Respondent (mother) has access every Thursday from 4:00 p.m. to 7:30 p.m. supervised by the Applicant or her partners.
[3] The Applicant resides with E.S. [1] who is the Respondent's mother and maternal grandparent to the child. The Applicant and E.S. have been in a common law relationship since June 2015.
[4] E.S. is also in a common law relationship with Liam Smith. They have two children who are 11 and 7 years old. The Applicant co-parents these children. The Applicant, Evan and L.S. and their children and child all reside together.
[5] The mother is 24 years old. When she was only 15 years old she gave birth to her son J. The Children's Aid Society became involved and he was placed in the care of E.(W.) [2] who was E.S.'s previous partner and who raised the mother. Ms E.W.S. has custody of J. and the mother has supervised access. Recently Ms E.W.S. has permitted the mother to have community access with J.
[6] The Applicant seeks an order for custody and primary residence of the child and an order to permit her to move with the child with the rest of her family. She proposes that the mother have access in the new home in Fonthill for a full day once a month to be supervised by herself or E.S. and L.S. and one full day every other month in Toronto in the community for a designated activity to include the child's sibling. She also proposes that there be once weekly Zoom visits as well as contact through Marco Polo messaging. Any other access including expansion to overnight access to be in her discretion.
[7] The mother is opposed to the relief sought. She submits that an order of custody is not required and that an order for primary residence is sufficient to provide the Applicant with the authority to register the child in school, daycare or to meet his medical needs. Whether or not the move is permitted, she is seeking unsupervised overnight access on alternate week-ends and sibling access twice a month and a sharing of all holidays. She also seeks to add E.S. as a party.
[8] The mother is Indigenous. The Applicant and L.S. are non-Indigenous. The mother is concerned that if the Applicant and her mother, E.S., separate that her child will no longer be exposed to his Indigenous culture. She seeks to add her mother E.S. as a party and deposes that she told her that the only reason she is not requesting custody of the child is that due to her income she would not qualify for subsidized daycare.
[9] Although the mother requests this relief, E.S. was not served with a Notice of Motion requesting that she be added as a party. Counsel for the mother submitted that E.S. is aware of the requested relief and as she is present on the telephone conference call, this should alleviate the necessity of formal service. E.S. has been clear that she does not wish to be added as a party and supports the Applicant's request for custody and for permission to move pending trial or other resolution.
[10] Adding a party to a legal proceeding has serious legal consequences. The necessity of serving a Notice of Motion and supporting affidavit is required so that there is an opportunity for the party to seek legal advice and prepare a response. As this was not done, I advised counsel that I was not prepared to proceed with that issue.
[11] I also raised the issue of the appropriateness of the Applicant's counsel referring to statements made at two elder-led mediation circles that the parties attended in order to attempt to resolve the parenting issues. In order for mediation to be successful it is important that all participants feel free to discuss issues without concerns that their statements or comments by the mediators are then revealed in an adversarial process. Counsel agreed that those references be struck from her client's affidavits.
[12] The issues to be decided on the motion are:
a) Whether the Applicant should be granted temporary custody of the child;
b) The nature of the mother's access; and
c) If the Applicant should be permitted to move to Fonthill Ontario with the child.
[13] Upon the conclusion of the motion, I advised the parties, that due to the Applicant needing to know whether or not she would be permitted to move with the child and the rest of her family, that I would be permitting the move and that the reasons for my decision permitting the move and my decision on the other issues would be released as soon as possible.
[14] An early trial date was also set for the week of October 19th.
[15] There are my reasons.
Background
[16] Although there is a dispute with respect to the circumstances that resulted in the child being placed in the care of the Applicant and the maternal grandmother, the relevant facts for this motion are not disputed.
[17] The child was in the care of the mother from birth. Native Child and Family Services of Toronto (NCFS) was involved on a voluntary basis.
[18] On June 23, 2018, when the child was 13 months old, NCFS became concerned about the mother's care and required that the mother and child reside in the family home and assume all primary caregiving while NCFS completed their investigation. The mother left the home and left the child in the family's care.
[19] NCFS did not formally apprehend the child as it decided to work with the mother's maternal family to assess them as a kin out of care caregivers.
[20] On June 28, 2018 the mother signed a temporary agreement placing the child with her mother and agreed to attend for regular supervised access to take place at her mother's home.
[21] On September 28, 2018 the NCFS completed their assessment including both police and children's aid background checks and opened a Kin out of Care file placing the child in the care of the Applicant and her family. Pursuant to the current agreement, only the Applicant, the maternal grandmother and her partner, an approved daycare or any other person vetted by NCFS is permitted to care for the child.
[22] Liam's father recently passed away suddenly at the beginning of July 2020. He then became responsible to care for his mother who resides in St. Catharines and is severely immune-compromised. She is not able to leave her home.
[23] Liam's father left him an inheritance and the family had an opportunity to purchase a 5 bedroom home on 2 acres of land in Fonthill, which is close to his mother's home.
[24] The family spoke to the mother who initially was excited by the move and therefore they went ahead and bought the property, arranged for mortgage financing and gave up the lease on their current rental property. The rental property has been rented to another family as of September 1st.
Analysis
Custody
[25] Although the kin out of care agreement placed the child in the care of the Applicant and her family, over the years she has assumed full responsibility and care of the child. She initiated this Application to formalize that arrangement.
[26] It is somewhat unclear as to the relief the mother is requesting on this motion. In oral argument, counsel for the mother did not request custody or primary residence. At paragraph 7 of the mother's affidavit the relief requested relates only to access and a non-removal order whereas at paragraph 23 of her affidavit she requests custody and primary residence.
[27] The mother deposes that if she is not granted custody that there be an order for joint custody between herself and her biological mother (E.S.) despite their challenging relationship. She is concerned that if the Applicant and her mother separate that the Applicant could move or that she would interfere with her access or access between the child and his sibling.
[28] The NCFS has filed several letters that are appended to the Applicant's affidavit supporting an order that the Applicant be granted custody of the child. It is the position of NCFS that if there is a final custody order in favour of the Applicant and the move to Fonthill is completed that the kinship file will be closed.
[29] Any proceeding with respect to custody of or access to children is determined with respect to the best interests of the particular child before the court in accordance with the factors set out in section 24 (2) to (4) of the Children's Law Reform Act.
[30] A temporary motion is meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will be later fully canvassed at subsequent conferences and if not, the issues will be resolved at a trial. [3]
[31] The status quo should be maintained until trial unless there is material evidence that the child's best interests requires an immediate change. [4]
[32] I have considered the case law and the factors set out in section 24 of the Children's Law Reform Act.
[33] The challenge on a temporary motion is to make such an important decision based on affidavit materials that have not been tested by cross-examination and on an incomplete record.
[34] In this case full disclosure of the NCFS records will be important and there are factual disputes that will need to be tested. Although Ms E.W.S. is supportive of the mother obtaining custody, questions with respect to why the mother did not reside with her with the child when the placement with the Applicant's family broke down or why she did not put forward a plan when NCFS was considering a kin placement will have to be explored.
[35] However, the child has been in the care of the Applicant and resided with her family for the last two years. The family has been working with the NCFS during this time who have no concerns regarding the child and are supportive of the Applicant obtaining custody.
[36] The mother is not presently in a position to care for the child. She is currently residing in the home and with a family that was not deemed safe when NCFS became involved in June 2018. Even if overnight access is granted, she is proposing that access take place at the home of Ms E.W.S. as her current accommodations are not suitable. Her position that a joint custody order be made with the maternal grandmother, who is not a party to the proceeding and who does not seek such an order, is not an order that the court can even consider on this motion.
[37] The Applicant and her family can continue to provide the child with a stable and loving home that is also committed to ensuring that the child understands and is exposed to his Indigenous heritage.
[38] As the Applicant is not biologically related to the child she has concerns that without a custody order she may not be recognized by third parties as a parent who is authorized to make decisions, access services or enroll the child in school.
[39] This is only a temporary order and an order of temporary custody will not prejudice the mother but will assist the Applicant and as such will be in the child's best interests. It is an order that recognizes the status quo that has been in place for the last two years.
Access
[40] The mother is seeking to expand her access significantly from a few hours of supervised access to overnight access.
[41] The mother has not had overnight or even unsupervised access for 2 years.
[42] I find that the mother's access has been inconsistent for the last 2 years. Although this is generally denied by the mother, I find that the Applicant's evidence on this issue is detailed and more credible than the mother's evidence.
[43] The Applicant deposes that pre-Covid, in the two years that the child has resided with her family, there were 83 scheduled visits. The mother has been absent for 22 visits often with no explanation and has been late 41 times by at least 15 minutes but sometimes by as much as an hour and a half.
[44] Since Covid restrictions have permitted in-person contact, there have been 7 scheduled visits, the mother has been absent for 1 visit and late for 5 visits. She was 40 minutes late for the first visit despite not having seen her son for 3 months.
[45] The Applicant deposes that due to this history of inconsistent access and being late for the visits, the mother's relationship with her son is very strained and he often needs encouragement to engage with his mother.
[46] The NCFS supports the mother having regular access and that the arrangements be left to the discretion of the Applicant.
[47] It is in this child's best interests to have regular and consistent access to his mother and his sibling. However, it is up to the mother to ensure that this takes place.
[48] The mother currently works part-time as kitchen staff and is in receipt of Ontario Works. There is no information about her hours of work but for the last 2 years access has been scheduled on Thursdays from 4:00 p.m. to 7:30 p.m. and I assume this schedule does not interfere with her work or other commitments.
[49] I find that if the mother is now able to accommodate more day access she should be entitled to do so. However, it is not in the child's best interests to wonder if his mother will be attending or if she will be on time. It is imperative that the mother exercise consistent access and arrive on time.
[50] The details of the mother's access will be further discussed below in light of my decision to permit the Applicant to move.
Mobility
[51] The leading case for determining if a relocation should be permitted on a temporary motion is Plumley v. Plumley [5] where the court set out the following principles:
A court will be more reluctant to upset the status quo on an interim motion and permit the move when there is a genuine issue for trial.
There can be compelling circumstances which might dictate that a justice ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial of the best interests of the children or the best interests of the children might dictate that they commence school at a new location.
Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong possibility that the custodial parent's position will prevail at trial.
[52] In this case, the status quo is that the child has resided with the Applicant and in her family unit for the past 2 years and based on the evidence on this motion there is a very strong possibility that her position for custody and primary residence will prevail at trial.
[53] Although a trial has been scheduled very quickly, there is always the possibility that for a myriad of reasons trials do not proceed.
[54] The Applicant and her family decided to move out of a rental property in Toronto on the understanding that the mother was in agreement. Although the mother is entitled to change her mind, this resulted in the Applicant and her family giving up the lease to their rental property and the Applicant being obligated to make mortgage payments on the new property.
[55] The Applicant has indicated that if she was not permitted to move that her family would still be moving. The child would then be separated from the rest of his family.
[56] The Applicant would have to attempt to find new accommodations in Toronto within a couple of weeks as she will no longer have accommodations as of September 1st.
[57] Such a disruption is not in the child's best interests.
[58] The new property will increase the quality of the child's life as he will have space to run and play and engage with the land that is consistent with his Indigenous cultural teachings. He will continue to live with his entire family unit.
[59] A move will not necessarily disrupt the mother's relationship and access to the child. The Applicant agreed that if the mother was able to manage to travel to the new property in Fonthill once a week in accordance with the current access schedule that she would accommodate that arrangement. On the other hand, if she is not able to do so the mother could exercise access once a month for a full day at the new property. The Applicant has offered to pay the mother's transportation costs.
[60] The mother did not provide any evidence as to how often she would be able to travel to the new property as she took the position that she should have alternate week-end access in Toronto and did not specify who would be transporting the child.
[61] The Applicant has also offered that she will transport the child to Toronto on alternate months and to arrange for virtual access.
[62] I find that the mother can maintain a meaningful relationship with her son despite the move.
[63] Due to a lack of evidence with respect to when and how access will be exercised by the mother, any order made by the court will not be as detailed as would be preferable.
Order
[64] There will a temporary order as follows:
1. The Applicant shall be granted primary residence and custody of the child E.W.R.B. born May 2, 2017.
2. The Applicant shall be permitted to move with the child to Fonthill Ontario.
3. The Applicant shall be permitted to register the child for school and daycare in the Fonthill/St. Catharine's area.
4. The Respondent shall have supervised parenting time with the child as follows:
a) Every Thursday from 4:00 p.m. to 7:30 p.m. The visit to take place in Fonthill if she is able to arrange transportation. If she wishes to exercise this access she shall advise the Applicant no later than the Wednesday at 4:00 p.m. before the visit is to take place;
b) Once every two weeks on a Saturday from 10:00 a.m. to 6:00 p.m. (or any other times as agreed upon). The visit is to take place in Fonthill. The Respondent shall advise the Applicant of her intention to exercise this visit and the day and time of the visit one week before the proposed visit;
c) Once every alternate month, to commence in September, on a Saturday from 10:00 a.m. to 6:00 p.m. (or any other times as agreed upon). The visit shall take place in the community in Toronto. The Applicant will advise the Respondent of the date and time of the visit. The Respondent shall arrange suitable activities for the child in the community and her other child can be included in the visit;
d) Any other access as may be agreed upon between the parties;
e) If the Respondent exercises access visits in Fonthill, she shall provide the Applicant with proof of the cost of the transportation and the Applicant shall reimburse the Respondent;
f) The Respondent shall be the primary caregiver during any visit but the Applicant or whoever is supervising the visit may step in if there is a safety concern, in accordance with the current requirement by Native Child and Family Services;
g) The Applicant may in her discretion determine the level and extent of supervision that is necessary;
h) Once weekly zoom visits on Wednesdays between 6:00 p.m. to 7:00 p.m. (or other times as agreed upon) to be initiated by the Respondent; and
i) The Respondent is able to contact the child through Marco Polo messaging.
5. As the successful party the Applicant is presumed to be entitled to costs. If the Applicant is seeking costs and if the parties are unable to agree upon costs, the Applicant shall serve and file her costs submissions, not to exceed 3 pages, with her Bill of Costs and any offer to settle attached, within 30 days. The Respondent shall serve and file her response not to exceed 3 pages, with her Bill of Costs if desired and any offer to settle, within 30 days of receipt of the Applicant's costs submissions. If either counsel refer to case law, a copy of the cases should not be attached. Costs submissions to be submitted to the court by email.
Released: August 24, 2020
Signed: Justice Roselyn Zisman
Footnotes
[1] At the commencement of the motion all participants were canvassed as to their preferred pronoun. E.S., who is not a party, but who was present on the telephone conference call indicated that the pronoun she/her should be used.
[2] For ease of reference and to distinguish the Applicant and Ms E.W.S. she will be referred to by her initials and the Applicant will be referred to as the step-grandparent or the Applicant.
[3] Coe v. Tope, 2014 ONSC 4002 at para. 25; Costello and McLean, 2014 ONSC 7332 at para. 11
[4] See above and cases cited therein